Freesoul Real Estate Development (Fiji) Pte Ltd v State [2022] FJHC 37; HAM181.2021 (7 February 2022)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL MISC NO. HAM 181 OF 2021

FREESOUL REAL ESTATE DEVELOMENT (FIJI) PTE LTD

V

STATE

Counsel: Mr D Toganivalu & Ms N Tikoisuva for the Applicant

Mr M Vosawale for the State

Date of Hearing: 27 January 2022
Date of Ruling: 07 February 2022

RULING

[1] The applicant is a business entity.

[2] Following a trial in the Magistrates’ Court, the applicant was convicted of two counts of undertaking unauthorized developments contrary to section 43(1) of the Environment Management Act 2005. The maximum penalty for each count is a term of imprisonment not exceeding 10 years and/or a fine not exceeding $750, 0000.00.

[3] After the finding of guilt was made, the State applied for the case to be transferred to the High Court for sentence on the ground that the maximum fine provided for the offence exceeded the $15,000.00 per count jurisdiction of the Magistrates’ Court. The State relied upon sections 190 and 191 of the Criminal Procedure Act to transfer the case to the High Court for sentence.

[4] The applicant through counsel objected to the transfer, but the learned trial magistrate overruled the objection, and transferred the case to the High Court for sentence pursuant to section 191 of the Criminal Procedure Act.

[5] Section 191 of the Criminal Procedure Act is a general provision that gives a magistrate discretion to transfer “any charge or proceedings to the High Court’’. The learned magistrate construed ‘proceedings’ to include sentencing proceedings.

[6] The learned trial magistrate did not rely upon the specific provision for transfer for sentence provided by section 190 of the Criminal Procedure Act. In construing section 190, the learned magistrate held that the business entity (the applicant) had not been in existence for 18 years, and therefore, the requirement for the applicant to be ‘over the age of 18 years’ under section 190 was not satisfied.

[7] In construing the requirement of age of the applicant under section 190, the learned trial magistrate did not consider the purpose of that requirement. The purpose of the requirement for an offender to be over the age of 18 years is because the Juveniles Act prohibits imprisonment of children (under the age 18 years) for more than 2 years. There is no purpose to transfer juveniles convicted of offences in the Magistrates’ Court for punishment by the High Court when there is a statutory limitation of 2 years detention for juveniles.

[8] As far as the business entities are concerned, there are no statutory sentencing limitations based on the age of the offending entity.

[9] Further, the learned magistrate did not consider the rule of statutory interpretation that a specific statutory provision for transfer to the High Court for sentence takes priority over a general provision for transfer of ‘any charge or proceedings’.

[10] Counsel for the applicant moves the High Court for a review and quashing of the transfer order under its revisionary jurisdiction.

[11] Sections 260-265 of the Criminal Procedure Act governs the revisionary powers of the High Court.

Section 260 states:

(1) The High Court may call for and examine the record of any criminal proceedings before any Magistrates Court for the purpose of satisfying itself as to —

(a) the correctness, leg orty or propriety of any finding, sentence or order recorded or passed; and

(b) tgularity of any proceerocee of any Magistrates Court.

(2) The High Court shall take action under sub-sectisection (1) upon the receipt of a report uthe hand of the Chief Justice which requests that such acti action be taken.

[12] In this case, the application for a review of the transfer order is made by the applicant. Neither the Court has called for a review nor has the Chief Justice has requested for a review of the transfer order.

[13] Section 260 of the Criminal Procedure Act does not give an applicant the right to seek a review of an order of transfer for sentence. In fact, section 262 (5) of the Criminal Procedure Act expressly precludes a review of an order at the instance of the party who could have appealed the order.

[14] When a transfer order is made for sentence in the High Court, section 190 (3) of the Criminal Procedure Act states:

The High Court shall enquire into the circumstances of the case and may deal with the person in any manner in which the person could be dealt with if the person had been convicted by the High Court.

[15] The scope of the enquiry into the circumstances of the case is limited to those circumstances that are relevant to sentence.

[16] In Nadan v State [2019] FJSC 29; CAV0007.2019 (31 October 2019) the Supreme Court held that an enquiry into conviction is precluded from the duty to enquire into the circumstances of the case before passing sentence under section 190 (3) of the Criminal Procedure Act. The Court said at [28]:

The language of section 190(3) takes colour from its purpose. That purpose it to invest the High Court with the power in certain circumstances to sentence a defendant convicted in the magistrates’ court. Although broad language is used, it is necessary to link the circumstances to be enquired into with the particular function which the High Court has to perform. Since that function is to determine the appropriate sentence, the circumstances to be enquired into are those which enable the High Court to do that.

[17] In rejecting the argument that the High Court could invoke its revisionary powers to correct an error before passing sentence, the Supreme Court said at [30]-[31]:

The record in the magistrates’ court had not been “called for”. It could only have been called for if the Chief Justice had requested it, and he had not: see section 260(2) of the CPA. Nor had the record “been reported for orders”. That only applies when a magistrate wishes to report something to the High Court under section 261(2) of the CPA. So the only route by which the High Court’s powers under section 262(1) of the CPA could have been invoked in this case was if the record of the proceedings in the magistrates’ court had come to the knowledge of the High Court in some other way. In this case, it had come to the knowledge of the High Court by the transfer of Nadan’s case under section 190(3) of the CPA to the High Court for sentencing.

So was the High Court’s revisionary power under section 262(1) of the CPA intended to cover cases which had come to the knowledge of the High Court by that route? I do not think so. Section 190(3) of the CPA provided its own code for the nature of the enquiry to be conducted when a defendant is transferred from the magistrates’ court to the High Court for sentence. That called for the High Court to enquire “into the circumstances of the case” so that the defendant “could be dealt with [as] if the person had been convicted by the High Court”. They could not be dealt with [as] if they had been convicted by the High Court if section 190 permitted the High Court to conduct an enquiry which could lead to the quashing of the conviction. In other words, whatever the obligation to enquire into the circumstances of the case involved, it did not include an enquiry which could result in the quashing of the conviction. (per Keith JA)

[18] Initially, the applicant sought a review of conviction but later that position was abandoned and the application for review was confined to the transfer order.

[19] I find the transfer order is an appealable order, and therefore, precluded from the revisionary jurisdiction under section 262 (5) of the Criminal Procedure Act.

[20] However, section 190 (5) of the Criminal Procedure Act provides a residual discretion to remit the case to the Magistrates’ Court for sentence. Section 190 (5) states:

The High Court, after hearing submissions by the prosecutor, may remit the person transferred for sentence in custody or on bail to the Magistrates Court which originally transferred the person to the High Court and the person shall then be dealt with by the Magistrates Court, and the person has the same right of appeal as if no transfer to the High Court had occurred.

[21] This case was transferred to the High Court for sentence upon the prosecutor’s application. The residual discretion provided by section 190 (5) of the Criminal Procedure Act to remit the case to the Magistrates’ Court for sentence is exercised where the High Court thinks the permissible sentence falls within the jurisdiction of the Magistrates’ Court (State v Vuluma [2010] FJHC 180; HAC100.2010 (27 May 2010)).

[22] In this case the potential fine is beyond the jurisdiction of the Magistrates’ Court. I have decided not to remit the case to the Magistrates’ Court for sentence pursuant to section 190 (5) of the Criminal Procedure Act.

[23] The application for review of the transfer order is dismissed.

. ...........................................

Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
Toganivalu Legal for the Applicant